Federal law requires employers to verify a new employee’s right to work in the United States using the Employment Eligibility Verification form, commonly known as Form I-9. President-elect Trump has suggested that he will seek to identify and potentially deport undocumented workers, and may seek to require all employers to utilize the E-Verify program to confirm that newly hired employees are legally authorized to work in the United States. The California Legislature has adopted resolutions against the use of state data (such as Department of Motor Vehicles records) by federal authorities for deportation proceedings. The manner in which the federal government will address undocumented workers and I-9 compliance remains uncertain, and the timing of further developments is similarly uncertain. As we await additional clarity on these issues, employers should continue to comply with existing law and follow the general guidance below.
California Employers Should Not Use E-Verify to Pre-Screen Applicants Unless Required To Do So
E-Verify is a free, web-based program operated by the Department of Homeland Security and the Social Security Administration that compares information from Form I-9 with information stored in federal databases to verify eligibility for employment. Currently, the law requires only certain federal contractors and subcontractors to utilize the E-Verify program.
California law prohibits employers from using E-Verify to check the status of existing employees or applicants who have not received an offer of employment, unless doing so is required by federal law or as a condition to receiving federal funds. Employers can use E-Verify, however, to check the status of applicants who have received a conditional offer of employment (i.e., an offer conditioned on the employee presenting proof of his or her right to work in the United States).
Comply With I-9 Rules at the Time of Hire
Employees must complete, sign and date Section 1 of Form I-9 by their first day of employment, but not before accepting their offer of employment. Employers must complete, sign and date Section 2 of the form no later than the employee’s fourth day of employment. Employers must complete Section 3 of the form only when they re-hire an employee or re-verify an employee’s right to work after a previous authorization has expired. Employers should generally accept documents offered by a new employee to demonstrate his or her right to work unless they have a specific and substantial reason to believe the documents are invalid.
Address Mismatched Social Security Numbers Properly
Applicants often use their Social Security numbers to establish their eligibility for employment. As a result of receiving a so-called “no match letter” from the Social Security Administration, employers occasionally learn that the Social Security number stated by an employee during the hiring process does not match the information reflected in the Social Security Administration’s records. Employers are subject to a multitude of legal obligations when confronted with potentially invalid Social Security numbers, and efforts to comply with one obligation often put them at risk of violating other obligations.
On the one hand, an employer cannot employ any individual who has not presented it with documents reflecting his or her right to work. On the other hand, an employer could expose itself to the risk of a discrimination suit if it treats a mismatched or invalid Social Security number as proof that the employee is not entitled to work in the United States. So, what is a well-intentioned employer to do? As is true with many legal issues, it’s not possible to provide a “one-size-fits-all” answer to this question. Nevertheless, employers may be wise to follow these general recommendations in most cases, and to confer with counsel to discuss the specific circumstances of their situation:
- Don’t ignore the issue, but don’t act rashly – Employers should not ignore mismatched Social Security numbers, but they also should not assume that a mismatched number is proof that the employee in question is not entitled to work in the United States.
- If a mismatch truly exists, refer the employee to the Social Security Administration – If the Social Security number reported by the employee truly conflicts with the number reported by the Social Security Administration, the employer should notify the employee of the mismatch and direct the employee to contact the Social Security Administration to rectify the problem. Employers should generally give employees at least 120 days to resolve the problem, and should direct the employee to report to the employer periodically on his or her efforts.
- Treat new Social Security numbers as valid absent specific evidence to the contrary – If the employee provides a new Social Security number after being informed of a mismatch, employers should generally accept the new number as valid absent some specific indication that it is not.
- If the discrepancy isn’t resolved, determine if the employee’s right to work is based on the validity of the Social Security number – The law permits employees to establish their right to work in the United States with a variety of documents, and one’s right to work can be proved without reference to a Social Security card. If the documents produced by the employee to establish his or her right to work did not include a Social Security card, the employee’s right to work is not dependent on the validity of his or her Social Security card and the employer should not terminate employment based on the mismatched Social Security number. If the employee relies on a Social Security card to establish his or her right to work and cannot provide a valid number, the employer should confer with counsel.
Do Not Re-Verify Existing Employees Who Have Presented Unexpired Documents
While employers should verify that all newly hired employees have the right to work, they should not seek to re-verify the identity or right to work of existing employees absent some tangible evidence suggesting that the documentation provided at the time of hire is invalid. Requiring existing employees to re-confirm their identity and right to work in the United States in the absence of specific information calling into question the validity of the documents utilized at the time of hire could be construed as discriminatory and should be avoided. Employers should not arbitrarily re-check I-9 documents for existing employees.
Be Alert to Future Developments
The topic of undocumented workers is sure to remain a subject of national debate for months to come, and further legal developments are likely. Employers should remain alert to new developments while complying with currently applicable law. If you have any questions about I-9 compliance, undocumented workers, or any other issue related to employment law, please contact one of our attorneys.